Copyright review in the EU

Despite the chilly days in Brussels, European copyright reform is the subject of a roasting debate. Two initiatives by the European Commission promise to rock the boat and transform the legislative framework, increasing harmonisation of exceptions and limitations, introducing new neighbouring rights for press publishers, addressing the value gap between user-generated video sharing platforms and content right owners, and also to improve the contractual situation of authors and performers – largely subject to biased contracts, with little or no insight on the revenues generated by the use of their performances and no legal means to claim a revision of inadequate terms initially "agreed". Alongside a directive to encompass all of this, a new regulation threatens to extend the country of origin principle from satellite to online broadcasting. This principle creates a legal fiction whereby the act of communication to the public is deemed to take place only in the country of the broadcast, thereby requiring rights to be cleared only once – regardless of the cross-border geographical reach of the broadcast. Despite its limited effect for satellite broadcasting, this principle, if extended to the online distribution of "ancillary" catch-up services and simulcasts, would profoundly undermine the territoriality of copyright and establish pan-European licensing as the rule for the online distribution of broadcast services. Given the importance of exclusive territorial licensing agreements to draw investment in the production of audiovisual content, preserve a genuine cultural diversity and promote new work opportunities, FIA has joined forces with other stakeholders in the audiovisual industry - including producers, distributors, private broadcasters, screenwriters, authors and directors - to counter this proposal.

Contrary to what the Commission, public broadcasters and some vocal interest groups are claiming, extending the country of origin principle to online services would in the end deliver less production, less diversity and local content for European consumers to watch. Despite a provision safeguarding contractual freedom, independent producers will have little clout to license only for certain territories and will thus struggle to draw investment. These producers are the backbone of the European creative sector. A few strong players will license content to the highest bidder for pan-European distribution and with little or no concern for local specificities or interests. Consumers will benefit from a less attractive and more expensive offer, made available by a highly concentrated pool of providers.

The Parliamentary debate has recently started with a bang, with various Committees publishing draft opinions that go beyond the scope of the initial proposal. Thousands of amendments are now expected and more will follow, as soon as the lead Committee (JURI) releases its draft report. FIA will continue to advocate for measures enhancing access to audiovisual content online, whilst preserving the sustainability of the industry, jobs and cultural diversity.

At the same time, FIA continues to advocate for better contractual terms for performers. Together with partner organisations AEPO-ARTIS, FIM and IAO, it seeks to improve the draft copyright directive by strengthening transparency rules and granting performers the right to claim collectively a revision of their contract, whenever the benefits initially agreed do not adequately reflect the revenues derived from the exploitation of their work. Since the Commission proposal is entirely built on litigation and thus on a case-by-case problem-solving basis, FIA is also advocating for the introduction of a complementary and unwaivable right for all performers to receive equitable remuneration for on demand use from online platforms, subject to mandatory collective management. With its Fair Internet Campaign partners, FIA is working closely with MEPs in the five appointed Committees to raise awareness and promote amendments leading to a positive outcome.